//  4/16/18  //  Commentary

This post, which highlights an academic paper related to #MeToo, is part of a series on #MeToo, sex discrimination, and possible solutions that amount to more than quick fixes.  

In a series of posts, I’ve highlighted how #MeToo must focus on systemic solutions including law reform, and also how some of the barriers to systemic solutions will be people who think they have already put in enough work. In another series of posts, I wanted to highlight some recent papers that bring together some of these themes.

Professors Lesley Wexler, Jennifer Robbennolt, and Colleen Murphy recently posted a paper on SSRN titled “#MeToo, Time’s Up, And Theories of Justice.” In the paper, they argue that restorative and transitional justice theories offer some insights for #MeToo, including its focus on structural inequalities. And, they argue, the two theories of justice bring home “the need for holism and mixed types of responses”—i.e., a move away from naming and shaming or firing, and more responses that are calibrated to the offense.

I agree with those insights of the paper, but also wanted to highlight one of the obstacles to borrowing from models of restorative or transitional justice. As the authors note, restorative justice emphasizes the importance of “acknowledgment” and “responsibility taking.” That is, victims want to have their stories acknowledge; ideally, they would like the perpetrator to not only admit wrongdoing, but acknowledge the harm it caused. We’ve seen some of this happen—Megan Ganz has shared how powerful it was for Dan Harmon to acknowledge how he had harassed her; how he was wrong to do so; and how that caused her serious harm. Indeed, she publicly accepted his apology and forgave him after he publicly recounted what he had done and why it was wrong.

The rub is that sometimes the only way to get to acknowledgment and responsibility taking, which are the necessary first steps for restorative justice, is naming and shaming. Netflix, for example, didn’t just come out and say “we made a huge mistake when we paid Claire Foy less for playing the Queen of England on The Crown than we paid the actor who plays her husband.” Rather, they acknowledged they had done so when confronted about it; only then did they publicly commit, going forward, to paying no one more than the queen.

Dahlia Lithwick has written about a similar aspect of the Rob Porter debacle. It was not that the White House decided to let Rob Porter go once they knew that he was credibly accused (by several women) of domestic violence. The White House only decided to do something about it once they knew people knew that they knew.

Indeed, this has also been a theme in some of the posts I've written in this #MeToo series:  It has taken public disclosures, and public prodding to force institutions and people to do something to address harassment.  Munger Tolles didn't decide to rescind the mandatory confidential arbitration provisions they had attempted to force on summer associates who had already accepted their offers out of nowhere.  They did so after law students leaked the existence of the agreements.  As I wrote at the time:

That just proves an uncomfortable fact about #MeToo:  No one, and I mean no one, thinks that the best system, or even a good system, for sorting through harassment claims is to air every accusation publicly.  The sad fact, however, is that it still remains the safest option for many women: Reporting publicly is still the best way to minimize the potential of retaliation against you, and to maximize the chance that the report is taken seriously. 

The same is true of the Federal Judicial Working Group's decision to create a mailbox to receive recommendations from former clerks, and to meet with some former clerks about their recommendations.  The working group didn't magically decide to do these things overnight.  They did so because former law clerks (the same ones I gave a shout out to in my last post--a group led by Jaime SantosKendall Turner, and others) publicly lobbied for them to do so.

As these examples show, sometimes the acknowledgment and responsibility taking aspects of restorative justice have to go through naming and, with it, shaming. As much as I would like that not to be the case, there are enough anecdotes to suggest naming is still an occasionally necessary step.


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